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PickyStory Agency Partner Program

Last updated on April 03, 2022

These Agency Partner Program (the “Agreement”) is entered into by and between Picky Story Ltd., based in Zalman Shazar St. 14, Netanya, IL 4249308 (“PickyStory”) and the person, entity, company, organization or party that is registering to participate in the PickyStory Agency Partner Program (“Partner”).  PickyStory and Partner are each referred to herein as a “Party” and collectively as the “Parties”. 

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND EXPRESSLY AGREE THAT YOU ARE AUTHORIZED ON BEHALF OF SUCH ENTITY, AS AN OFFICER, EXECUTIVE OR OTHER AUTHORIZED AGENT, TO AGREE TO AND ACCEPT THIS AGREEMENT AND YOU FURTHER REPRESENT AND EXPRESSLY AGREE THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS HEREOF. 

BY REGISTERING FOR OR OTHERWISE PARTICIPATING IN THE PICKYSTORY AGENCY PARTNER PROGRAM, OR BY ACCESSING OR USING ANY OF THE MARKETING MATERIALS OR PICKYSTORY MARKS OR BY CLICKING “I AGREE” TO THIS AGREEMENT WHEN PRESENTED DURING THE PICKYSTORY AGENCY PARTNER PROGRAM REGISTRATION PROCESS, PARTNER ACKNOWLEDGES THAT IT HAS READ ALL OF THIS AGREEMENT AND AGREES TO COMPLY WITH ALL OF THE TERMS AND CONDITIONS HEREOF.  IF PARTNER DOES NOT AGREE WITH THIS AGREEMENT, PARTNER MAY NOT REGISTER FOR OR OTHERWISE PARTICIPATE IN THE PICKYSTORY AGENCY PARTNER PROGRAM OR OTHERWISE ACCESS OR USE ANY OF THE MARKETING MATERIALS OR PICKYSTORY MARKS AND MUST DISCONTINUE ALL USE OF THE MARKETING MATERIALS AND PICKYSTORY MARKS AND ALL ACTIVITIES RELATED TO OR INVOLVING THE PICKYSTORY AGENCY PARTNER PROGRAM.  PARTNER’S REGISTRATION WITH THE PICKYSTORY AGENCY PARTNER PROGRAM, AND/OR PERFORMANCE OF ANY ACTIVITIES IN FURTHERANCE OF THE PICKYSTORY AGENCY PARTNER PROGRAM, AND/OR ACCESS TO AND USE OF ANY OF THE MARKETING MATERIALS OR PICKYSTORY MARKS INDICATES PARTNER’S FULL UNDERSTANDING AND ACCEPTANCE OF THIS AGREEMENT.

 

ARBITRATION NOTICE. You understand and agree that disputes arising under this Agreement will be resolved by confidential binding, individual arbitration. (See Section 14c.) 

1. Background

PickyStory is a provider of e-commerce conversion solutions and services, including the “PickyStory Platform”, a proprietary conversion platform and related software services designed for merchants to increase sales and related services across web and mobile sites and applications.  PickyStory has established the PickyStory Agency Partner Program to allow referral partners to solicit and refer potential merchant customers for the PickyStory Services (as defined below) within the Territory (as defined below) on the terms set out herein. This Agreement describes the terms on which Partner will participate in the PickyStory Agency Partner Program and other terms and provisions related to Partner’s activities as contemplated by this Agreement.

2. Definitions

For purposes of this Agreement, capitalized terms used herein shall have the meanings set forth in this Section or the meanings otherwise given to them in the main body of this Agreement:

“Affiliate” with respect to an entity, shall mean an entity that owns or controls the entity, is owned or controlled by the entity, or is under common ownership or control of the entity. 

“Agency Partner Program” means the PickyStory Agency Partner Program as described in and subject to the terms and conditions of this Agreement and as may be supplemented or described further in the Policies or other documents or materials that PickyStory may make available from time to time.

“Agreement” shall mean this Partner Agreement together with all of its Exhibits and, to the extent applicable.

“Applicable Laws” means any applicable law, rule, regulation or other government requirement.

“Confidential Information” shall have the meaning given to it in Section 10. 

“Feedback” means any feedback from Partner or its employees or representatives related to the PickyStory Services or the Agency Partner Program, including without limitation, feedback on features or functionality, usability, and specifications therefor, and may also include suggestions or ideas for improvements or enhancements to the PickyStory Services or the Agency Partner Program.

“Intellectual Property Rights” means patents, copyrights, utility models, trademarks, design rights, database rights, trade secrets, know-how and other rights in confidential information, trade and business names and all other intellectual property rights, proprietary rights and forms of protection of any kind of a similar nature or having a similar effect in any country or jurisdiction, whether registered or unregistered, together with all registrations, applications, renewals and extensions of and to such rights.

“Qualified Merchant” shall mean a merchant referred to PickyStory by the Partner, who installs and goes-live with the PickyStory Services subsequent to the Partner’s referral being accepted by PickyStory in accordance with the terms of this Agreement. 

“Receiving Party” shall have the meaning given to it in Section 10.

PickyStory IP” means the PickyStory Services, the Marketing Materials, the PickyStory Marks, and all intellectual property therein or related thereto, and any other software, technology, materials or intellectual property that may from time to time be created or developed by PickyStory or its agents (including any modifications or derivatives to the PickyStory Services, the Marketing Materials, the PickyStory Marks), including any and all Intellectual Property Rights to the foregoing. 

PickyStory Services” shall mean (i) PickyStory’s proprietary conversion platform and related software services designed for merchants to increase sales and related services across web and mobile sites and applications; and (ii) any related data, APIs, software, technology, programs and/or software and platform specific related services or functions that PickyStory may provide or make available to merchants from time-to-time.  

“Territory” shall mean worldwide. 

3. Agency Partner Program

a. Registration Process.  To join the Agency Partner Program, Partner must first affirmatively accept and agree to this Agreement and must complete all registration forms and provide all supporting information and materials requested by PickyStory (collectively, the “Registration Materials”). PickyStory shall review Partner’s Registration Materials and shall use reasonable efforts to notify Partner via email within 30 days of submission whether Partner has been accepted to the Partner Program. PickyStory may accept or deny any Partner for any reason or no reason at its sole discretion. 

b. Referral Right.  Effective once a Partner has been accepted to the Agency Partner Program (as evidenced by Partner’s receipt of an acceptance email from PickyStory), PickyStory shall grant and hereby does grant the Partner a non-exclusive right to solicit and refer potential merchants for the PickyStory Services within the Territory on the terms set out herein.  Notwithstanding the foregoing, Partner will not have the authority, express or implied, to make any commitment, enter into any agreements or contracts, or incur any obligations or liabilities on behalf of PickyStory other than making referrals as set forth in this Agreement.   If Partner is not accepted to the Agency Partner Program, then Partner shall not be entitled to any benefits or commissions under the Agency Partner Program and shall have no right to solicit or refer potential merchants for the PickyStory Services, and only the following sections of this Agreement shall apply to Partner: 3(d), 8(b)(iii), 9, 10, 11, 12, 13 and 14.

c. Project Manager.  Effective once Partner has been accepted to the Agency Partner Program, each Party will designate a single point of contact within its organization to manage the relationship established by this Agreement (“Partner Manager”). Either Party may change its Partner Manager by providing written/email notice to the other Party. The Partner Managers will meet as necessary to discuss the business relationship and manage the activities contemplated by this Agreement. Disputes that cannot be resolved by the Partner Managers will be escalated to more senior executives for resolution.  

d. Responsibility for Own Expenses.  Partner shall bear all of Partner’s own costs and expenses associated with Partner’s compliance with this Agreement and Partner’s participation in the Agency Partner Program.  Without limiting the foregoing, Partner agrees that any marketing activities performed by Partner under this Agreement shall be at Partner’s own cost and expense.

e. Marketing.  Partner agrees to use its best efforts to carry out the marketing activities performed under this Agreement in a way that secures and strengthens the reputation of PickyStory and the PickyStory Services.  

f. Disclaimer.  The Parties acknowledge and agree that this Agreement shall in no way limit PickyStory’s right to market the PickyStory Services to any merchants, or to engage other third parties to carry out marketing and referral services with respect to the PickyStory Services on PickyStory’s behalf within the Territory.

g. Policies.  Partner acknowledges that PickyStory may establish guidelines, policies, rules, or other documentation applicable to the Agency Partner Program (collectively, the “Policies”). Those Policies may contain terms and conditions in addition to those in this Agreement and are subject to change at any time.  The Policies shall be communicated by or made publicly available or posted by PickyStory as they become applicable or are modified. Partner is responsible for reviewing the Policies regularly.  Partner’s participation in the Referral Agency Program is subject to Partner’s compliance with the Policies and all of the Policies are hereby incorporated by reference into this Agreement.

4. Referral Process

a. Referral by Partner.  When Partner identifies a prospective merchant, Partner will refer that merchant to PickyStory’s Partner Manager or complete the partner referral intake form in order to register Partner’s referral to Partner’s account.  Partner shall provide such information and complete such referral intake forms related to the referral as PickyStory may reasonably require or request.  

b. Review by PickyStory.  Upon receipt of a referral, PickyStory has the right to accept or reject the referral in its sole discretion. A referral may be rejected for any reason, including, but not limited to, because the referral is not qualified, contact with PickyStory has already been established with the referral, or the referral is an existing PickyStory merchant. PickyStory shall promptly notify Partner in writing if a referral has been accepted or rejected (with email, Slack or other means of electronic communications being sufficient for this purpose).  If PickyStory does not provide written notice of rejection or acceptance within ten business days, the referral is deemed to have been rejected.  Once a referral is accepted by PickyStory, such referral merchant will be eligible to become a Qualified Merchant. 

c. Merchant Contracts.  Nothing herein shall obligate PickyStory to accept a prospective merchant or provide services to any prospective merchant or to enter into a contract or agreement with any prospective merchant (a “Merchant Contract”).  Partner acknowledges and agrees that each Merchant Contract is a direct agreement only between the Qualified Merchant and PickyStory.  This means, with respect to a particular Merchant Contract, Partner shall not have any right to review or negotiate such Merchant Contract, or to be advised of or consulted regarding any Merchant Contract.  In particular, PickyStory shall be solely responsible for determining all terms and conditions pertaining to payments and fees owing under a Merchant Contract or otherwise applicable to the PickyStory Services.

5. Obligations of the Partner

a. Referrals.  Partner will use commercially reasonable efforts to refer to PickyStory potential merchants of the PickyStory Services.  Partner shall at all times comply with the Marketing Plan (as defined below) and other requirements specified in Section 6 and any other lead generation or marketing Policies or other referral requirements from time to time provided by PickyStory. Partner will ensure that its sales representatives and agents are knowledgeable about the PickyStory Services, the Marketing Plan and all applicable PickyStory Policies pertaining to the Partner’s referral and marketing activities hereunder.  

b. Assistance.  Partner will reasonably assist PickyStory in completing sales to accepted referrals as and to the extent requested by PickyStory. Without limiting the foregoing, Partner will, to the extent requested by PickyStory, set up, and attend meetings with referrals, provide PickyStory with detailed background on the identity of the referral and the representatives of the referral, and assist in preparing and presenting sales materials to referrals.

c. Requirements.  When seeking merchant referrals and otherwise performing under this Agreement, Partner will: (i) not engage in any deceptive, misleading, illegal, or unethical practices; (ii) not make any representations or warranties concerning the PickyStory Services, except as set forth in Marketing Materials (defined below) furnished by PickyStory; (iii) conduct business in a manner that reflects favorably at all times on the good name, goodwill, and reputation of PickyStory; and (iv) comply with all Applicable Laws.  Partner will cause all of its sales representatives and agents to comply with the foregoing. 

d. Internal Education.  Partner will inform and educate its organization (including employees and representatives) about the nature of the business relationship between the Parties and PickyStory’s products and services.

e. Website.  Partner will clearly display on their website that the Partner acts as a PickyStory Partner, with up-to-date descriptions and information regarding the PickyStory Services, as provided to the Partner by PickyStory.  

f. Competitive Services Obligations. Partner shall provide customer or licensor with requested support and feedback requested to allow customer or licensor to make its own informed decision.

g. Prospect Information.  During the course of performing its referral activities hereunder, Partner may disclose and provide to PickyStory certain data, information and materials related to prospective merchants (collectively “Prospect Information”). Partner represents that it does have and shall have all necessary rights and approvals required to provide and disclose the Prospect Information with PickyStory, and Partner shall not provide nor disclose any Prospect Information with PickyStory unless Partner is fully and legally authorized to do so.  PickyStory shall have and does have an unrestricted right and license to use such Prospect Information for purposes consistent with this Agreement and contacting and marketing to prospective merchants.  Partner shall not share any confidential information of any third party (including a prospective merchant referral) with PickyStory unless Partner has first identified such information as confidential prior to disclosure and PickyStory has agreed to accept such information in writing.  Partner shall only share or disclose Prospect Information with PickyStory if and to the extent such Prospect Information was collected in compliance with Applicable Law and only to the extent that the sharing of such Prospect Information with PickyStory is permitted by Applicable Law.  Without limiting the foregoing, Partner shall not share nor provide to PickyStory any personal information or personal data unless permitted under Applicable Law and consistent with any contractual obligations applicable to Partner.

h. Representations & Warranties.  Partner represents, warrants and covenants that: (a) it possesses the full right, power and authority to enter into and fully perform this Agreement and is not legally prohibited from entering into or performing its obligations thereunder; (b) the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action; (c) it will not make any materially false or materially misleading representations, warranties or statements about PickyStoryPickyStory’s services or technologies, or the Parties’ relationship under this Agreement; (d) it will comply with all Applicable Laws in connection with this Agreement; (e) it will otherwise act, at all times during the term of this Agreement, in a manner that reflects favorably on PickyStory and the Agency Partner Program and is consistent with the terms and spirit of this Agreement and the Policies; 

i. Other Restrictions.  Partner will not directly or indirectly (i) engage in any business activity that competes with the business activities of PickyStory or (ii) use any Confidential Information of PickyStory or any PickyStory customer lists or other PickyStory merchant information to market competitive services or products to PickyStory’s merchants. For the purpose hereof, business activities competing with those of PickyStory shall be the development, sale, operation, distribution or provision of products or services related to or otherwise concerning an e-commerce conversion platform.

6. Marketing; Trademarks; IP

a. Marketing Plan.  When performing marketing and referral activities hereunder, Partner shall comply with the Marketing Plan attached hereto as Exhibit B (the “Marketing Plan”) and any other lead generation or marketing Policies or other referral requirements from time to time provided by PickyStory.  PickyStory may update or revise the Marketing Plan from time to time, in which case the updated Marketing Plan shall become automatically effective upon Partner’s receipt of 10 business days’ written notice from PickyStory.   

b. Marketing Materials.  PickyStory may, at its own expense and discretion, provide Partner with marketing and technical information concerning the PickyStory Services as well as reasonable quantities of brochures, instructional material, advertising literature, and other product data (collectively, the “Marketing Materials”).  In such event, Partner shall have a non-exclusive, nontransferable, royalty-free license to use such Marketing Materials for the sole purpose of marketing the Services and providing them to potential merchants.  PickyStory retains all right, title, and interest in and to all Marketing Materials.  

c. Marketing Material Restrictions.  Partner may not: sell, lease, license, copy, sublicense, decompile, disassemble, modify, reverse engineer, modify, or prepare derivative works of the Marketing Materials; permit anyone else to use the Marketing Materials without PickyStory’s prior written consent; or remove, alter or obscure any copyright, trademark or other notices or logos on any portion of the Marketing Materials. Nothing contained in this Agreement shall grant or be deemed to grant Partner any right, title, or interest in or to the Marketing Materials and PickyStory shall own and retain all right, title and interest in and to (including, without limitation, all Intellectual Property Rights) in the Marketing Materials and any PickyStory IP. Any goodwill resulting from Partner’s use of PickyStorys Marketing Materials inures solely to the benefit of PickyStory and will not create any right, title, or interest for Partner in any of the Marketing Materials or any PickyStory Marks.  Partner may identify PickyStory as the supplier of the PickyStory Services in marketing materials independently developed by Partner only if PickyStory approves such materials in writing in advance (including approval by PickyStory’s legal department).

d. PickyStory Marks.  Before Partner uses any PickyStory trademarks, tradenames or logos (the PickyStory Marks”) in connection with this Agreement, Partner must first obtain the written permission of PickyStory; provided that the foregoing shall not limit Partner’s ability to use the Marketing Materials consistent with their intended purpose and the other requirements hereof.  

e. PickyStory Marks Restrictions. Partner must at all times abide by any usage guidelines, requirements or Policies from time to time provided by PickyStory applicable to the PickyStory Marks.  Partner will not challenge or assist others to challenge any of the PickyStory Marks or their registration or attempt to register any trademarks, tradenames or logos confusingly similar to any of the PickyStory Marks.  If Partner acquires any goodwill or reputation in any of the PickyStory Marks, all such goodwill or reputation shall automatically vest in PickyStory and Partner agrees to take all actions necessary to effect such vesting.  When this Agreement ends, Partner will immediately cease use of all PickyStory Marks.  Nothing contained in this Agreement shall grant or be deemed to grant Partner any right, title or interest in or to any of the PickyStory Marks, other than the limited use rights set forth herein.  Upon PickyStory’s request, Partner will immediately cease use of all of the PickyStory Marks.

f. PickyStory IP.  Partner agrees that all of the PickyStory IP and all Feedback are owned by PickyStory or its licensors, and are protected by U.S. and international intellectual property laws, and that PickyStory or its licensors (as applicable) do and shall solely own and retain all right, title and interest to, including all Intellectual Property Rights in, the PickyStory IP and all Feedback, any and all modifications, enhancements and derivative works made to the foregoing.  PickyStory IP is the Confidential Information of PickyStory.  Partner agrees to assign and hereby does assign to PickyStory all of its right, title and interest in and to the Feedback, including all Intellectual Property Rights therein. If, notwithstanding the assignment of Feedback set forth above, Partner retains ownership of any Feedback, then Partner hereby grants to PickyStory a  nonexclusive, perpetual, irrevocable, worldwide, royalty-free right and license to use, disclose and exploit such Feedback without restriction, including, without limitation, to use the Feedback for its business and commercial purposes and to reproduce, modify, create derivative works of, license, distribute and otherwise commercialize the Feedback as part of any of PickyStory’s offerings.

7. Referral Compensation

a. Compensation.  Partner’s sole compensation under this Agreement will be the payment of a commission for each Qualified Merchant calculated in accordance with Exhibit A. PickyStory reserves the right to modify commission rates from time to time at its discretion by providing Partner with 30 days’ written notice. However, commission changes only affect sales to referrals registered 30 days after the date of the notice provided by PickyStory.

b. Payment.  PickyStory will pay commissions to Partner as specified in Exhibit A.

c. Taxes.  All fees stated in this Agreement are exclusive of any applicable sales or value-added tax, unless specifically stated otherwise. Each Party is solely responsible for: (i) determining what, if any, taxes or fees apply to the sale of its products and services, or payments it receives in connection with such sale; and (ii) assessing, collecting, reporting, and remitting any taxes or fees for its business to the appropriate tax and revenue authorities.

8. Term; Termination

a. Term.  This Agreement shall continue for a period of time equal to one (1) year from the Effective Date (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for successive one (1) year terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either Party provides the other Party with notice of its intention not to renew at least thirty (30) days’ prior to the end of the then-current term 

b. Termination.  

(i) For Convenience.  During the Term, either Party may terminate this Agreement, at any time for any or no reason upon thirty (30) days’ prior written notice to the other Party. 

(ii) For Cause.  If either Party fails to perform any of its material obligations under this Agreement or otherwise beaches any material terms and conditions of this Agreement, the other Party may terminate this Agreement by giving 10 days prior written notice, provided that the matters set forth in such notice are not cured to the terminating Party’s reasonable satisfaction within the 10-day period.  Without limiting the foregoing, the Parties agree that any breach of Sections 5, 6, 8 and 10 of this Agreement shall constitute a material breach.  In addition to the foregoing, either Party shall have the right to terminate this Agreement if the other Party terminates its business activities or becomes insolvent, files for bankruptcy, admits in writing its inability to pay debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.  

(iii) Effects of Termination.   Except as expressly required by law, if either Party terminates this Agreement in accordance with any of the provisions of this Agreement, neither Party will be liable to the other, because of such termination, for expenditures or commitments made in connection with this Agreement or damages caused by the loss of prospective profits or anticipated sales. Termination will not, however, relieve either Party of obligations incurred prior to the effective date of the termination.  Upon termination, Partner will immediately cease all marketing and referral activities hereunder and shall cease use of the Marketing Materials and PickyStory Marks, and destroy and/or return to PickyStory (as instructed by PickyStory) any and all copies of such Marketing Materials.  Upon termination, Partner may no longer identify itself as a PickyStory Partner and shall remove all references to PickyStory from Partner’s website.  Each Party shall return or destroy all Confidential Information of the other Party and shall provide a written certification of such return or destruction if requested by the other Party.  Upon termination, PickyStory will only be responsible for paying a commission for referrals accepted prior to the effective date of the termination. The following provisions will survive any expiration or termination of this Agreement: Sections 3(d), 3(f), 3(g), 5(c), 5(h), 5(i), 6(c), 6(e), 6(f), 7(c), 8(b)(iii), 9, 10, 11, 12, 13 and 14.

9. Disclaimer of Warranties

PICKYSTORY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (WHETHER IN FACT, BY OPERATION OF LAW OR OTHERWISE), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. PICKYSTORY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE WITH RESPECT TO THE PICKYSTORY SERVICES AND/OR THE AGENCY  PARTNER PROGRAM. PICKYSTORY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PICKYSTORY SERVICES OR AGAINST INFRINGEMENT. PICKYSTORY DOES NOT WARRANT THAT THE PICKYSTORY SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE PICKYSTORY SERVICES WILL BE SECURE OR UNINTERRUPTED. PARTNER DOES NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF PICKYSTORY TO ANY MERCHANT OR OTHER THIRD PARTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.  NO WARRANTIES ARE CREATED BY ANY COURSE OF DEALING BETWEEN THE PARTIES, TRADE USAGE OR INDUSTRY CUSTOM. PICKYSTORY IS NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM PARTNER’S USE OF PICKYSTORY MARKETING MATERIALS OR PARTNER’S DEALING WITH ANY MERCHANT. PARTNER UNDERSTANDS AND AGREES THAT PARTNER’S PARTICIPATION IN THE AGENCY PARTNER PROGRAM IS AT PARTNER’S OWN DISCRETION AND RISK.  THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. PICKYSTORY DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT PICKYSTORY IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.

10. Partner Indemnity

Partner will defend, indemnify and hold harmless PickyStory and its affiliates and their respective employees, directors, agents, and representatives (“PickyStory Indemnified Parties”) from and against any lawsuit, claim, allegation, damage, liability, cost, loss or expense (including reasonable attorneys’ fees) that may at any time be incurred by any of them resulting from, relating to or arising out of: (i) Partner’s breach or violation of this Agreement or any Policies, (ii) Partner’s negligence, willful misconduct, fraud or violation of Applicable Law, and (iii) any claims or disputes between Partner and any prospective merchant or Qualified Merchant.  The applicable PickyStory Indemnified Party shall give Partner prompt written notice of the claim.  Partner shall have full and complete control over the defense and settlement of the claim, provided that no settlement admitting liability on the part of a PickyStory Indemnified Party may be made without the express written consent of such PickyStory Indemnified Party.  The applicable PickyStory Indemnified Party shall provide such assistance in connection with the defense and settlement of the claim as Partner may reasonably request at Partner’s cost and expense.

11. PickyStory Limitation of Liability

a. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, PICKYSTORY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO PARTNER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF PICKYSTORY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

b. UNDER NO CIRCUMSTANCES WILL PICKYSTORY’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY PICKYSTORY TO PARTNER UNDER THIS AGREEMENT (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).  PARTNER AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ITS PARTICIPATION IN THE AGENCY PARTNER PROGRAM OR THIS AGREEMENT MUST BE BROUGHT BY PARTNER WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES AND OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED AND PARTNER SHALL NOT BE PERMITTED TO BRING ANY CLAIMS RELATED THERETO.  

c. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE COMMISSION OFFERED BY PICKYSTORY TO PARTNER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

12. Confidentiality

a. Confidential Information.  During the term of this Agreement and for a period of two (2) years thereafter, a Receiving Party shall not to disclose Confidential Information or a Disclosing Party to any third party without the Disclosing Party’s written consent. “Confidential Information” means any information, in whatever form, disclosed or provided by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in the context of this Agreement. The confidentiality obligation under this section does not apply to any information which: (1) is or becomes generally available to the public other than as the result of a disclosure by the Receiving Party; (2) the Receiving Party can show that it already had in its possession before it was received; (3) the Receiving Party has received from a third party who was free to lawfully disclose such information to the Receiving Party; (4) the Receiving Party is required to provide in accordance with any applicable laws, investment exchange rules, court order or decision by a governmental authority, provided that (i) the Receiving Party shall promptly notify the Disclosing Party of that fact in writing to permit the Disclosing Party the reasonable opportunity to appear in any judicial proceeding involved or otherwise act to preserve its rights, (ii) such disclosure is not greater than what was required to be compliant with such law, regulation or order, and (iii) the Receiving Party seeks confidential treatment for Confidential Information prior to disclosure. The burden of proof lies with the Receiving Party to demonstrate that any of the aforementioned requirements (1) to (4) is fulfilled.

b. Restrictions.  Except as permitted in this Agreement, a Receiving Party shall not use the Confidential Information of the Disclosing Party except for the purpose of performing its obligations under this Agreement or exercising the rights granted in this Agreement.  A Receiving Party shall protect all Confidential Information of the Disclosing Party from disclosure and unauthorized use in the same manner that it protects its own proprietary and confidential information of like nature, but in no event shall such standard of care be less than reasonable care.  Except as expressly authorized hereunder, a Receiving Party shall not copy the Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent.  A Receiving Party shall immediately notify the Disclosing Party in the event of any unauthorized use or disclosure of such Disclosing Party’s Confidential Information.   

c. Third Party Information.  For the avoidance of doubt, Confidential Information also refers to third party information (including information of Qualified Merchants) that is of technical, commercial or other nature unless it is clear that such information is non-confidential. Each Party may share Confidential Information with its subcontractors, external advisors and any of its Affiliates on a need-to-know basis, provided that such parties are subject to written confidentiality obligations corresponding to those under this Agreement. Notwithstanding anything in this Agreement, the Parties acknowledge and agree that any information that may be deemed a trade secret shall be subject to confidentiality for as long as such information remains a trade secret.  Prospect Information shall not be considered Confidential Information hereunder unless Partner complies with its obligations under Section 4.7 and PickyStory has agreed to receive such information. 

13. Organizational Use

The individual entering into this Agreement on behalf of Partner hereby represents that they have the authority to bind Partner to this Agreement.  ANY INDIVIDUAL WHO DOES NOT HAVE SUCH AUTHORITY, OR WHO DOES NOT AGREE WITH THIS AGREEMENT, MUST NOT ACCEPT THIS AGREEMENT AND MUST NOT ATTEMPT TO REGISTER WITH THE AGENCY PARTNER PROGRAM OR ACCESS OR USE ANY OF THE PICKYSTORY MARKETING MATERIALS. 

14. General

a. Effective Date; Right to Modify; Binding Effect of Continued Use. This Agreement is effective as of the date that Partner clicks “I Agree” when these terms are first presented in connection with the Agency Partner Program registration process or Partner otherwise starting using or accessing any PickyStory Marketing Materials (the “Effective Date”). PickyStory reserves the right to change this Agreement from time to time without notice to Partner and any modifications or changes to this Agreement (including changes to the Policies) shall be effective upon such modification or amendment being posted to the PickyStory website or any specific pages applicable to PickyStory partners or otherwise communicated to Partner.  Partner acknowledges and agrees that it is Partner’s responsibility to review this Agreement (including the Policies) periodically and to be aware of any modifications. Partner’s continued use of any Marketing Materials or other participation in the Agency Partner Program after such modifications will constitute Partner’s acknowledgement of the modified Agreement and agreement to abide and be bound by the modified Agreement.  

b. Governing Law; Venue.  Partner agrees that the laws of the State of Israel, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between Partner and PickyStory, except as otherwise stated in this Agreement. All actions related to this Agreement shall take place in Tel Aviv, Israel, subject to the terms of the next section.   

c. Dispute Resolution and Arbitration.  In the event of any controversy or claim arising out of or relating to this Agreement, or any breach thereof, such controversy or claim shall be determined and settled by confidential arbitration, conducted in English, held in Tel Aviv, Israel. The award rendered by the arbitrator shall be final and binding on the Parties, and judgment thereon may be entered in any court of competent jurisdiction.   The Parties shall keep confidential: (a) the fact that any arbitration occurred; (b) any awards awarded in the arbitration; (c) all materials used, or created for use in, in the arbitration; and (d) all other documents produced by another Party in the arbitration and not otherwise in the public domain, except, with respect to each of the foregoing, to the extent that disclosure may be legally required (including to protect or pursue a legal right), or to enforce or challenge an arbitration award before a court or other judicial authority.  The arbitrator shall award to the prevailing Party, if any, its costs and expenses, including its attorneys’ fees. The prevailing Party shall also be entitled to its attorneys’ fees and costs in any action to confirm and/or enforce any arbitration award in any judicial proceedings.  Nothing in the Agreement shall prevent either Party from seeking provisional measures or equitable or injunctive relief from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. 

d. Assignment; Reproduction of Sites. Partner may not assign Partner’s rights and obligations under this Agreement to any third party, and any purported attempt to do so shall be null and void. PickyStory may freely assign PickyStory’s rights and obligations under this Agreement and transfer, assign or novate this Agreement.  

e. Force Majeure.  In addition to any excuse provided by Applicable Law or under this Agreement, PickyStory shall be excused from liability for any delay arising from any event beyond PickyStory’s reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond PickyStory’s reasonable control, whether or not similar to those which are enumerated above.

f. Enforceability; Severability. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. 

g. No Waiver.  Any failure by PickyStory to enforce or exercise any provision of this Agreement or related rights shall not constitute a waiver of that right or provision or a waiver of PickyStory’s right to enforce or exercise any such provision of this Agreement in the future. 

h. Intended Beneficiaries.  This Agreement is strictly between PickyStory and Partner.  There are no intended third party beneficiaries of this Agreement.

i. Use of Words.  The term “including” as used in this Agreement shall mean “including, without limitation,” unless the context otherwise requires.

j. Entire Agreement.  This Agreement and the Policies constitute the entire agreement and understanding between PickyStory and Partner concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto. This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by Partner and PickyStory

k. Independent Contractors.  In performing this Agreement, the Parties act and shall act at all times as independent contractors, and nothing contained in this Agreement shall be construed or implied to create an agency, partnership or employer and employee relationship between the Parties.  Except as expressly set forth in this Agreement, at no time shall either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.  Financial and other obligations associated with each Party’s business are the sole responsibility of that Party.

l. Notices.  Partner’s acceptance of this Agreement as described above constitutes Partner’s electronic signature to this Agreement and Partner’s consent to enter into agreements with PickyStory electronically.  Partner also agrees that PickyStory may, but has no obligation to, send to Partner in electronic form any privacy or other notices, disclosures, reports, documents, communications or other records regarding the Agency Partner Program (collectively, “Notices”).  PickyStory can send Partner electronic Notices (i) to the e-mail address that Partner provided to PickyStory (if any), or (ii) by posting the Notice at the PickyStory website or any specific pages applicable to PickyStory Partners.  The delivery of any Notice from PickyStory is effective when sent or posted by PickyStory, regardless of whether Partner reads or views the Notice when Partner receives it or whether Partner actually receives the delivery.  Partner can withdraw Partner’s consent to receive Notices electronically by terminating this Agreement.  All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing. 

All questions, complaints, claims or other notices to PickyStory shall be in writing and shall be made either via email or conventional mail to the addresses set forth below, or using any contact functions made available in connection with the Agency Partner Program.  Any legal notices or legal matters related to this Agreement must be sent to both the email address below and by commercial courier in paper form to the address below to the attention of the PickyStory Legal Department.

 

Email: [email protected]

Address:  Zalman Shazar St. 14, Netanya, IL 4249308

 

Any notices or communication under this Agreement will be deemed delivered to PickyStory on the date received by PickyStory.

 

Exhibit A

Compensation

Subject to the Partner’s fulfillment of its obligations under this Agreement, the Partner is entitled to compensation as follows:

Commission

 

Partner Tier Minimum MRR Rev share % Duration
Partner
$0
15%
12 months
Platinum
$1,000
20%
12 months
Elite
$2,500
25%
18 months

 

Partner tiers fees are based on Qualified Merchant Revenue actually received by PickyStory. This commission will not be payable for renewals or new purchases by a Qualified Merchant after the one (1) year period following the Qualified Merchant’s first invoice from PickyStory for use of the PickyStory Services.

“Qualified Merchant Revenue” means all amounts actually received by PickyStory from a Qualified Merchant for the PickyStory Services for the one (1) year period following such Qualified Merchant’s first invoice from PickyStory for use of the PickyStory Services, exclusive of (i) any refunds, rebates, returns, fees, payment processing fees, 3rd-party fees or discounts from time to time offered by PickyStory to the Qualified Merchant and (ii) any applicable taxes.

The following conditions apply to the above stated compensation:

Payment of compensation to the Partner shall take place monthly in arrears within 45 days after the end of each calendar month during which any Qualified Merchant Revenue was received by PickyStory (“Payout Period”), provided that the Partner has provided PickyStory with any required documentation (e.g. tax-related forms) for payment prior to the end of the Payout Period. PickyStory will provide a report of the Qualified Merchants included in the commission payment. A Partner shall not be eligible for payment of compensation for a given month if all required documentation and/or information with respect to Partner and/or a Qualified Merchant is not provided to PickyStory prior to the conclusion of the respective Payout Period.

The compensation shall be paid to the Partner via the payment method designed by PickyStory.  

For clarity, the Parties acknowledge and agree that if a Qualified Merchant ceases to use PickyStory Services at any time, no fees shall be earned or applicable after such termination or expiration.  Additionally, if a Qualified Merchant enters into a free evaluation/trial period with respect to the PickyStory Services, no commission shall apply during the free trial period. 

PickyStory reserves the right to change its merchant pricing at any time in PickyStory’s sole discretion.  The commissions and amounts payable hereunder only apply to the PickyStory Services and not any other services or offerings or that may be provided by PickyStory.

 

Exhibit B

1. GO-TO-MARKET ACTIVITIES

1.1 Partner Website

Partners are encouraged to announce their partnership with PickyStory through media channels, and include any testimonials and merchant references if possible, subject to written approval from PickyStory’s Marketing department prior to distribution in each case.

1.2 PickyStory Partner Directory

As a participant in the Agency Partner Program, Partner will be listed on the PickyStory Partner Directory and Partner must maintain and keep updated its listing with relevant and up to date information. PickyStory may also request a quote and relevant content from Partner to announce the partnership. Partner hereby grants to PickyStory a non-exclusive license to use Partner’s trademarks, service marks, trade names, logos, designs and other designations or brands used by Partner in connection in co-marketing material and announcements via PickyStory various channels.

1.3 Co-Marketing Collaboration

Partners are encouraged to collaborate with PickyStory in Co-Marketing activities. Where possible, PickyStory will participate and provide Marketing Materials and branding support and may promote the collaborations through PickyStory channels. Partners are encouraged to promote the PickyStory Services via promotions and campaigns, such as email or advertising campaigns, in newsletters, at events and posting on Partner’s website, in each case consistent with any guidelines or requirements from time to time communicated by PickyStory.

 

2. CONTENT MARKETING COLLABORATIONS

The following are suggested collaborations between PickyStory and the Partner with the goal of promoting the partnership, raising awareness, and generating leads. PickyStory will reasonably support Partners in these collaborations by reviewing and providing input where relevant and beneficial to both Parties.  Partner may use the Marketing Materials in connection with such collaborations consistent with any guidelines or requirements from time to time provided by PickyStory.  Any independently developed content or marketing materials shall require the prior written approval of PickyStory.

2.1 Case Studies: Reference cases based on the success stories of existing merchants can be a highly effective way of communicating the benefits of PickyStory and the experience of being a PickyStory user. All Partners are encouraged to collaborate with PickyStory to create case studies focused on specialized conversion type and vertical of the PickyStory merchants. PickyStory must review and approve the merchant, the conversion type, and vertical.

2.2 Battlecard, Quick Reference Guides, and Boilerplates: We encourage all Partners to reference a sales battlecard in order to provide potential merchants with an overview of PickyStory and the associated benefits of the PickyStory Services. The battlecard can be included in proposals and tech-stack development work proposals. This battlecard can provide valuable reference information for prospects to understand how PickyStory fits into their overall goals. PickyStory must review and approve the battlecard prior to its first use.

2.3 Thought Leadership Content: Whitepapers, e-books, research reports, blog posts, and other related content pieces are an effective method of establishing a position of thought leadership in the market while also generating leads. PickyStory may invite the Partner to create content and participate in the PickyStory guest blog, or other PickyStory communication channels.

2.4 Events: Webinars, merchant meet-ups, or other industry events are a great way to raise awareness, educate, and generate merchant leads for the respective Partners. PickyStory may request the collaboration of Partners in connection with marketing and industry events and encourages Partners to invite PickyStory to collaborate on events.

2.5 Partner-led education and support: Webinars and education events are an effective way to reach a targeted audience with material that supports a variety of topics while ensuring the value of the solution is realized. PickyStory encourages all Partners to create educational programs in the form of online material, videos, webinars and/or hosted events.

 
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